2022-TIOL-995-ITAT-AHM

DCIT Vs Vishal Export Overseas Ltd

Whether generating electricity can be considered as manufacturing activity and depreciation 32(1)(iia) can be allowed - YES : ITAT

- Revenue's appeal dismissed: AHMEDABAD ITAT

2022-TIOL-994-ITAT-AHM

Sanjeev Gajendra Pancholi Vs ITO

Whether additions framed on account of unexplained cash is upheld where assessee is unable to substantiate his claim of having received a cash gift & where gift deed is unregistered, many pages are in vernacular language & English translation is not furnished despite several prompts - YES: ITAT

- Appeal dismissed: AHMEDABAD ITAT

2022-TIOL-993-ITAT-AHM

DCIT Vs Chandrakant L Patel

Whether there is no valid transfer of land by assessee to partnership firm of M/s. Vallabh Dvelopers in the year under consideration giving rise to any capital gain - YES : ITAT

- Revenue's appeal dismissed: AHMEDABAD ITAT

2022-TIOL-992-ITAT-BANG

DCIT Vs Sri Sai Lakshmi Industries Pvt Ltd

Whether when assessee has given permissive possession and not legal possession as contemplated u/s 53A of Transfer of Property Act, then provisions of sec.2(47)(v) of I-T Act are not applicable - YES: ITAT

- Revenue's appeal dismissed: BANGALORE ITAT

2022-TIOL-991-ITAT-BANG

Bestride Consultancy Pvt Ltd Vs ITO

Whether interest expenses merits to be disallowed if interest bearing funds have been utilized for purpose of interest free loans - YES: ITAT

- Case remanded: BANGALORE ITAT

2022-TIOL-1150-HC-DEL-GST

Nirmal Kumar Mahaveer Kumar Vs CCGST

GST - Impugned demand was raised against the petitioner on account of the fact that the e-way bill generated had expired - Inasmuch as when the goods were intercepted, the e-way bill was no longer valid - The explanation given by the petitioner is that since the earlier vehicle had broken down, another vehicle was requisitioned for transporting the goods - It appears that the petitioner did not ask for extension of time for completion of journey and resultantly when the vehicle was intercepted, it was found that the e-way bill generated had already expired - Petitioner paid the amount demanded towards tax and penalty as he was keen that the goods reached the designated destination at the earliest and consequently the demand was liquidated on the same date on which it was made i.e. on 30.09.2020 - Writ petition is directed against the impugned order dated 31.12.2021 passed by the appellate authority. Held: This is not a case where the petitioner intended to evade tax, however, the impugned demand seeks not only the payment of tax but also penalty - Given the aforesaid circumstances, Bench is of the view that the petitioner needs to be given another chance to establish as to why the subject goods did not reach their designated destination before the expiry of the e-way bill - Impugned order is set aside and the matter is remanded for a fresh decision in the matter - Writ petition is disposed of: High Court [para 16, 18, 19]

- Petition disposed of: DELHI HIGH COURT

2022-TIOL-1149-HC-KERALA-GST

Sanskruthi Motors Vs Joint Commissioner (Appeals) II State Goods And Service Tax Department

GST - Petitioner has an agreement with M/s Tata Motors Ltd. for transportation of commercial and passenger vehicles and chassis which are driven to various destinations as required by the Tata Motors company - Petitioner had transported a new tipper lorry from Tamil Nadu to Kozhikode, Kerala when the vehicle was intercepted and detained by the Assistant State Tax Officer and a SCN was issued on 09.07.2019 at 12.20 pm - It was noted that the E-way bill had expired on 08.07.2019 - As the vehicle was detained, the petitioner had moved High Court and the lorry was directed to be released on production of bank guarantee - Notice was, thereafter, adjudicated and order was issued on 16.08.2019 imposing a penalty of Rs.5,24,017/- with a demand for IGST for the same amount - Appeal filed was returned stating that the same cannot be entertained as petitioner had not paid any admitted tax and there is no pre-deposit of 10% of disputed tax; that stamp paper equivalent to 1% of disputed tax is not remitted towards the legal benefit fund - Petitioner points out that the vehicle had failed to cross the check post on 08.07.2019 because it developed some mechanical problems and had to be taken to a workshop; that for minor discrepancies, a major penalty cannot be imposed - Reliance is placed on the apex court decision in Satyam Shivam Papers - 2022-TIOL-07-SC-GST - Counsel for respondent submitted that since it is the admitted case that the e-way bill had expired when detention was effected, there is absolutely no jurisdictional error or infirmity warranting interference at the hands of the Court under Article 226 at this stage; that petitioner has an effective remedy by way of an appeal. Held: The situation arising in the instant case, warranted imposition of only a minor penalty as contemplated under the Circular 64/38/2018 dated 14-09-2018 - In view of the above, the imposition of tax and penalty upon the petitioner to the extent imposed in Ext.P6 is perverse and illegal, warranting interference under Article 226 of the Constitution of India - View taken by the Telangana High Court - 2021-TIOL-1338-HC-TELANGANA-ST as affirmed by the Supreme Court - 2022-TIOL-07-SC-GST is a binding precedent as far as this Court is concerned - Writ petition is allowed - Ext.P3 will stand quashed - The matter will stand remanded to the 1st respondent who shall consider the amount of penalty to be imposed on the petitioner taking note of the findings in this Judgment and also keeping in mind the observations of this Court in Ext.P6 judgment (Podaran Foods India P Ltd. - 2021-TIOL-115-HC-KERALA-GST, after affording an opportunity of hearing to the petitioner: High Court [para 13]

- Petition allowed: KERALA HIGH COURT

2022-TIOL-1148-HC-ALL-GST

Peeyush Kumar Jain Vs UoI

GST - s.132 of the CGST Act, 2017 -  Cash amounting to Rs. 196.57 Crores was seized from the applicant's premises besides recovery of 23 kilograms gold, which was handed over to the Officers of the Directorate of the Revenue Intelligence - Applicant has admitted that the amount seized is the sales proceed of the goods [perfumery compounds] clandestinely supplied by him without payment of tax and the applicant has paid Rs. 54.09 crores towards GST liability along with interest and penalty as per his own calculation, but as the investigations are still in progress, DGGI is yet to ascertain the final tax liabilities under Section 74(7) of the CGST Act, 2017 - The applicant was arrested on 26-12-2021 - Applicant seeks his release on bail. Held:  The position of law regarding grant of bail which emerges from the judgments of the Supreme Court is that the basic jurisprudence relating to bail in economic offences remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial - It is not advisable to categorize all the economic offences into one group and deny bail on that basis - One of the circumstances to consider the gravity of the offence is the term of sentence that is prescribed for the offence the accused is alleged to have committed - Even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provide so - A prayer for bail is not to be denied merely because the sentiments of the community are against the accused - The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required - Fit case to exercise this Court's discretion of granting bail to applicant - Applicant is to be released on bail on his furnishing a personal bond of Rs.10 lakhs and two reliable sureties each of like amount to the satisfaction of the court concerned and subject to conditions as mentioned - In case of breach of any of the conditions, the prosecution shall be at liberty to move an application before this Court seeking cancellation of the bail order: High Court [para 30, 32, 33]

- Application allowed: ALLAHABAD HIGH COURT

2022-TIOL-797-CESTAT-KOL

CST Vs Tycoon Industries Pvt Ltd

ST - Assessee is working inside mining area as per an agreement entered into with M/s. Tata Steel Limited (TSL) covering the period 2009-10 to 2011-12 - Issue to be decided is, whether activity of assessee merits classification under GTA services or under mining services - From SCN and O-I-O, it is found that it is not in dispute that transport services have been provided within mining area of TSL by assessee and same relates to transportation of raw coal from colliery pit head to power plant and crusher plant and there from to washeries; railway sidings, stock yard and such other destinations as specified by TSL and transportation of dolomite, within the respective areas under West Bokaro Mines, Chhattisgarh and Gomardih Dolomite Mines - When it has not been disputed by Revenue that the transport activities have been performed within mining area of TSL, then confirmation of demand on such activity by treating the same as mining service cannot be sustained in view of settled jurisprudence in this regard vide judgment of Supreme Court in case of Singh Transporters 2017-TIOL-249-SC-ST - Issue is squarely covered by judgment of Supreme Court and by respectfully following the same, transport charges cannot be included in valuation for mining services and thus the order of Adjudicating authority is correct in eyes of law: CESTAT

- Appeal dismissed: KOLKATA CESTAT

2022-TIOL-796-CESTAT-MAD

Popular Vehicles And Services Pvt Ltd Vs CGST & CE

ST - The Tribunal vide Final Order had remanded matter along with other connected appeals for a different period to adjudicating authority for de novo adjudication - In such de novo adjudication, original authority held that appellant has wrongly availed credit for period October 2010 to September 2011 and confirmed the demand to this extent along with interest and imposed penalty - It is brought out that appellant has reversed credit of Rs.14,41,435/- which is reflected in their ST returns for period October 2010 to March 2011 - Though closing balance in returns show as Rs.14,41,435/-, the balance noted in ST-3 returns for period April 2011 to September 2011 shows the opening balance as Nil - This would show that appellant has not carried forward cenvat credit which is sufficient evidence to show that appellant has reversed the sum for disputed period - Details of demand made alleging wrongly availed cenvat credit has overlapped to different periods after remand of matter to adjudicating authority and thereafter when appeal came up before Commissioner (A) - Revenue was fair enough to submit details of calculation of disputed cenvat credit and the reversals made by appellant in earlier case of appellant - Returns filed by appellant establish that they have not carried forward the credit from previous period - Revenue has taken efforts to explain details of demand made by department - As the appellants have reversed credit their liability under Rule 6 (3) of CCR, 2004 stands extinguished - Impugned order therefore cannot sustain and is set aside: CESTAT

- Appeal allowed: CHENNAI CESTAT

2022-TIOL-795-CESTAT-MUM

CCE Vs Kailash Vahan Udyog Ltd

CX - Assessee is manufacturer of Motor Vehicles for transport of goods - They fabricate bodies on duty paid chassis for manufacture of Tipper Trucks/ Vehicles declared to be classified under CSH 87042120, 87042290 and 87059000 - These trucks after fabrication are cleared at Nil rate of duty vide Notfn 6/2006 C.Ex. - SCN was issued to respondents asking them to show cause as to why the product tipper bodies manufactured and used captively by assessee should not be classified under CSH 8707 - It is observed that Commissioner has for arriving at her findings referred to report received from division office and also Chartered Engineer Certificate - Commissioner has found that report received from division office was not in accordance with allegation made, based on physical examination of manufacturing process - It is also observed that SCN also do not rely on any report prepared for such physical examination and make it a relied upon document for issuance of SCN - So to clarify on basis of SCN, Tribunal had sought clarification from concerned authorities as to existence of any such physical verification report - In absence of any such verification report of manufacturing process at the time of issuance of SCN, entire basis for issue of SCN fails - Thus, findings recorded by Commissioner on basis of subsequent report called during adjudication proceedings and Chartered Engineer certificate cannot be disputed - Issue in respect of classification of "Garbage Compactors" was considered by Tribunal in case of Hydraulic Industries (P) Ltd. - Even after introduction of eight digit tariff, the principle has not undergone change and commissioner has referred to manufacturing process and arrived at said finding hence benefit of exemption claimed under Notfn 6/2006-CE by assessee cannot be denied as has been held by impugned order - In case of Kailash Auto Builders Ltd. 2010-TIOL-1097-CESTAT-MUM it is held that 'Skip Loader", a specially designed garbage collection vehicle required by municipal local bodies, was classifiable under Heading 87.05 and eligible for benefit of exemption under Notfn 162/86-CE - Since the issue has been decided by authorities dropping the demands for earlier period on same issue, this appeal cannot be sustained without any challenge to earlier orders - Appeal filed by revenue is dismissed: CESTAT

- Appeal dismissed: MUMBAI CESTAT

2022-TIOL-794-CESTAT-MUM

Huhtamaki PPL Ltd Vs CC

Cus - The issue relates to denial of refund for being beyond the threshold of limitation prescribed in section 27 of Customs Act, 1962 and penalty of Rs. 16,98,720 and Rs. 10,17,776 respectively - Appellant was in possession of 'scrip' and 'authorization' issued in same year which, in accordance with para 2(4) of notfn 102/2009-Cus disentitled them to usage of scrip - It was held that appellant commenced the process of restitution of duty foregone in imports effected by availing of scrip - There is no doubt that public notice 30/2015-20 did prescribe mode of surrender of one or other to be exercised within nine months thereof with observation that penal consequences and detriment would not follow - The disinclination of lower authorities to adhere to this commitment in public notice, adopted in its entirety by CBEC in circular 45/2016-Cus was the direction in latter that 'pending cases' be disposed off accordingly - Lower authorities declined to perceive concluded proceedings as pending and, taking note of absence of protest while discharging liability, held the claim for refund to be ineligible - Duty and interest liability were made good before issue of SCN despite which proceedings under section 28 of Customs Act, 1962 were initiated and, it would appear, as mandatory penalty under section 114A of Customs Act. 1962 was invokable - Recovery was required to be completed by issue of adjudication order; however, under the new incorporation in section 28 of Customs Act, 1962, facility of reduced penalty was made available and the appellant opted for benefit bringing proceedings to a conclusion on their own which, even without a speaking adjudication order, is closure and not dropping of proceedings - Revisit of such concluded, deemed in law or de facto, proceedings is possible only through the appellate process and excess paid, if any, is accessible only by consequential relie - The existence of 'protest' is not germane to consequential relief with its own self-contained frame of limitation - Claim for refund is not maintainable; that would be tantamount to interference with concluded, and unchallenged, proceedings: CESTAT

- Appeal dismissed: MUMBAI CESTAT